Please help overstay 5 years and married to usc

[Myopia 93]

To the OP- It is a shame that the situation is as it is for you at this time. The sad thing is you will not be able to adjust your status in lieu of immigration reform because you did not marry the person who petitioned you to enter the US in the first place.

What you need to do now is consider what the best course of action is. You will have to leave the US and start the process from your home country. If you are married to the US citizen that you are pregnant for(I am assuming he is a USC) then you are able to file a CR1 visa and waivers to return. As long as you are married to the father of your child, the child will be able to have a claim to US citizenship regardless of where the child is born.

The choice is yours. Most importantly take care of yourself and your unborn child. Stress is a terrible mimic for diseases so try to stay stressfree.

[nane1104 146]

An anchor baby usually has no ties to the US other than having been born there. The parents arent US citizens or LPR's.

Her baby would be a citizen through the father regardless of where the baby was born.

I agree and I don't think it even matters where the baby would be while they would file for the hardship waiver. This is not an "anchor baby" situation as it's not the baby who would make it possible for the parent to enter the US at some point.

[B_J 2,752]

No need to lash out at her over and over. What she did was stupid and wrong but it happened and now it's time to get her on the right way to be a Legal Permanent Resident.

I think some people just see the situation she is in now and have decided they don't want her to ever be here legally.

[Operator 1,927]

She is not an illegal immigrant as she entered the country legally with a K-1 visa. Since she didn't get married to her then fiance, she is now out of status, has no legal status at all. That's why she would get banned from reentering the country once she leaves.

To "make it right" she has to indeed leave the USA, she would get banned from re-entering, even if her new application for a CR-1 would be approved. That's where the waiver comes into play. You file for the waiver to get around the ban.

There is nothing illgal about it, you either get it approved or you don't.

Like someone else said, this is the only legal way for her to return and live legally in the United States. The fact that she will have to leave at all and go through the whole process plus filing for the waiver (which will be very stressful) should be punishment enough.

No need to lash out at her over and over. What she did was stupid and wrong but it happened and now it's time to get her on the right way to be a Legal Permanent Resident.

Nane1104 thank you for the explanation. I was honestly just trying to understand the situation. If you'll look back I hope that you'll see that my comment wasn't directed at the OP and I certainly wasn't lashing out at her. I thought that someone had suggested that her current status wasn't illegal and I was trying to get my head around that. Just trying to get me some learning in.

[VanessaTony 3,567]

Sorry if my comment wasn't very clear. I was simply trying to understand the process and if it possible to change status from an overstay situation. I'll work on my reading comprehension before I comment again.

The K1 has a few rules:

1. MUST marry K1 petitioner in order to AOS. You can marry someone else but you cannot AOS to that person. --- The OP is in this situation. She cannot get a GC unless she first leaves the US and enters on a CR-1 visa.

2. Marry in 90 days in order to AOS based on K1. You can still marry the original USC petitioner outside of the 90 days but can't AOS based on the K1 and instead need to file an I-130. Needs to be original USC petitioner or rule #1 applies

When the I-94 expires the K1's status has expired. The are NOT here "illegally" because they entered legally. They are out-of-status. A good way to explain it not being illegal is she doesn't get charged with a crime, she just gets deported.

A ban comes into play depending on the length of overstay. 180 days but less than 365 is a 3 year ban. Overstay of 365+ days is a 10 year ban. The ban only applies once the immigrant leaves the country. If she was to get deported that carries a 10 year ban. These bans don't add together. So for instance, if the OP leaves by herself (not deported) she will have a 10 year ban because of the many years overstay and she needs to file ONE waiver. If she was deported she would still have a 10 year ban for the overstay BUT she also has a 10 year ban for the deportation and she will need TWO waivers (one for the overstay and one for the deportation) OR she would need to wait 10 years before she can re-enter (if she can't get the waivers approved).

It IS possible to change status from an overstay situation but it depends on what visa you overstayed from, and whether the immigrant is married to a USC. Because the K1 has the built-in "ONLY K1 USC petitioner" rule the OP has no way to change her status without first leaving the US and getting her USC husband to petition a spousal visa for her. Had she arrived on a different visa different rules would apply.

Edited April 13, 2011 by Vanessa&Tony

[Operator 1,927]

The K1 has a few rules:

1. MUST marry K1 petitioner in order to AOS. You can marry someone else but you cannot AOS to that person. --- The OP is in this situation. She cannot get a GC unless she first leaves the US and enters on a CR-1 visa.

2. Marry in 90 days in order to AOS based on K1. You can still marry the original USC petitioner outside of the 90 days but can't AOS based on the K1 and instead need to file an I-130. Needs to be original USC petitioner or rule #1 applies

When the I-94 expires the K1's status has expired. The are NOT here "illegally" because they entered legally. They are out-of-status. A good way to explain it not being illegal is she doesn't get charged with a crime, she just gets deported.

A ban comes into play depending on the length of overstay. 180 days but less than 365 is a 3 year ban. Overstay of 365+ days is a 10 year ban. The ban only applies once the immigrant leaves the country. If she was to get deported that carries a 10 year ban. These bans don't add together. So for instance, if the OP leaves by herself (not deported) she will have a 10 year ban because of the many years overstay and she needs to file ONE waiver. If she was deported she would still have a 10 year ban for the overstay BUT she also has a 10 year ban for the deportation and she will need TWO waivers (one for the overstay and one for the deportation) OR she would need to wait 10 years before she can re-enter (if she can't get the waivers approved).

It IS possible to change status from an overstay situation but it depends on what visa you overstayed from, and whether the immigrant is married to a USC. Because the K1 has the built-in "ONLY K1 USC petitioner" rule the OP has no way to change her status without first leaving the US and getting her USC husband to petition a spousal visa for her. Had she arrived on a different visa different rules would apply.

Thank you very much! It's clear to me now.

[Casprd 167]

An anchor baby usually has no ties to the US other than having been born there. The parents arent US citizens or LPR's.

Her baby would be a citizen through the father regardless of where the baby was born.

Actually not true. There are conditions on the residency of the parent that would determine if the baby is a natural US Citizen or not. If one parent is a US citizen then they must have been a resident of the US or an outlying territory for a cumulative time of 5 years, 2 of which must be since they were 14.

[Myopia 93]

Actually not true. There are conditions on the residency of the parent that would determine if the baby is a natural US Citizen or not. If one parent is a US citizen then they must have been a resident of the US or an outlying territory for a cumulative time of 5 years, 2 of which must be since they were 14.

Errrm It is true.

"Anchor baby" is a derogatory term for a child born in the United States to immigrant parents, who, as an American citizen, supposedly can facilitate immigration for relatives.[1] The term is generally used as a derogatory reference to the supposed role of the child who automatically qualifies as an American citizen and can later act as a sponsor for other family members.[2] It has been charged that this is a politically charged term, used to spark resentment against immigrants.

The term "anchor baby" is a misnomer – it implies that by having a baby in the US, temporary or illegal immigrants can "anchor" themselves in the US. In fact, a US citizen child cannot file for a US visa for that citizen's parents until 21 years of age, and upon reaching that age, the citizen applicant must also be earning at least 125% of the US poverty threshold to be able to apply.[5] Thus, temporary or illegal immigrants who have babies in the US have no means of remaining legally in the US; they must return home and wait at least until the child reaches age 21. Illegal immigrants usually cannot immigrate even after the child turns 21 since they usually face a multi-year or lifetime ban from immigration to the USA, regardless of sponsorship.[6]

I understand the laws of derivative citizenship. The term "anchor baby" in this instance...in any instance is incorrect and derogatory.

[Anh map 2,098]

Her only option will always be to return to her home country and start from scratch with her new husband filling a new application to bring her as a spouse, plus the waiver for overstaying. If I was her I would just contact a lawyer who specializes in Waivers to cut cost.

K1 visa made it clear to leave if you've decided not to marry the Petitioner, hiring a lawyer to tell you whats your option after not meeting the requirement is a waste of money.

So are you advocating a consultation with an attorney as you suggested in your first paragraph, or dismissing the guidance of an attorney as you suggest in your second paragraph?

The OP knows that they are in a bind. This couple needs to learn what the options are and what the penalties/hurdles/etc. may be. It's likely going to be tough. Discussing all the specifics with a qualified immigration attorney seems a prudent step.

[Boiler 45,525]

What is the Home Country?

It may be a walk in the park, a simple overstay through CDJ is no biggie for example, other Consulates can be painful.

www.immigrate2us.net is the place for waivers.

[san diego 407]

You know, guys! She is illegal and committed a crime. I do not want to be judgemental in most case, but WE ARE PAYING TAXES FOR HER. I am sure that over the period of these 5 years she worked somewhere without paying either federal or state taxes. and she used ALL THE BENEFITS that regular taxpayers like me and you receive and even more!! I pay every year $80K in taxes for felons like her and I AM TIRED!!

[Brother Hesekiel 2,236]

San Diego,

you are out of line, big time.

First of all, the O.P. is not a felon. She entered the US legally with the same visa you bought for your Russian mail order bride; it just didn't work out between the two lovebirds, which is something that can happen to anybody, yourself included. She is also not guilty of a crime, which is why she could not be prosecuted even if Stalin himself where the Attorney General of the United States.

Secondly, many illegal immigrants pay into SS just like you and I as the money is directly deducted from the paycheck; the difference is, however, that the SSA can keep that money without ever having to give any of it back. So if you get money from the SSA, it's partly because illegal immigrants contributed to it.

So for your next vacation I suggest Chernobyl. When you stand in front of the glowing reactor, get rid of your deeply rooted hatred by screaming as loudly and as long as you like. It will make you feel better.

[san diego 407]

San Diego,

you are out of line, big time.

First of all, the O.P. is not a felon. She entered the US legally with the same visa you bought for your Russian mail order bride; it just didn't work out between the two lovebirds, which is something that can happen to anybody, yourself included. She is also not guilty of a crime, which is why she could not be prosecuted even if Stalin himself where the Attorney General of the United States.

Secondly, many illegal immigrants pay into SS just like you and I as the money is directly deducted from the paycheck; the difference is, however, that the SSA can keep that money without ever having to give any of it back. So if you get money from the SSA, it's partly because illegal immigrants contributed to it.

So for your next vacation I suggest Chernobyl. When you stand in front of the glowing reactor, get rid of your deeply rooted hatred by screaming as loudly and as long as you like. It will make you feel better.

Just Bob,

Obviously, ignorance is a blessing! SS deducted from what??? From cash payments?? BTW, the moment she stayed here illegally this becomes a crime. No matter what you say. You may want to learn geography in addition to everything else: Chernobyl is Ukraine, not Russia. And probably I am paying taxes for you too. Feels like it... Your opinion speaks for itself.. I do not want to pay for your food stamps either...

[blue11 0]

you committed a crime and should be prosecuted. he is right. i do still do not see why everyone is trying to assist you in turning this crime into a legal thing. I DO NOT WANT TO PAY TAXES FOR YOU!! AND I DO HOPE YOU GET WHAT YOU DESERVE ACCORDING TO THE LAW. The fact that you stayed here for 5 years AFTER expiration of the K1 tells me that you did eat-up my taxes.

and she found some loser to marry her which I think is still a total fraud. we keep helping her. save your efforts for legals!

Seriously you sound like a mad man, I never take a penny from gov and i do paid tax for past 5 years that i stayed here. Everyone that stay in this country have to pay tax not just you and you sound like there is only you paying tax. How much you understand the word crime? GO school to take some ESL class and learn the word CRIME.

Edited April 14, 2011 by blue11

[san diego 407]

Seriously you sound like a mad man, I never take a penny from gov and i do paid tax for past 5 years that i stayed here. Everyone that stay in this country have to pay tax not just you and you sound like there is only you paying tax. How much you understand the word crime? GO school to take some ESL class and learn the word CRIME.

You paid taxes from what?? you do not have work permit.. so you did not have the right to work.. Can you explain it to me where did you work and how did you specifically pay taxes?? just curious.. You may enlighten me. I am open.. I may change my mind if you explain.. So far I am a HUGE supporter of the Republican party but if you explain this to me I may re-consider my opinion.